The Disabled Dentist and Disability Insurance

The Disabled Dentist and Disability Insurance:

An Introduction to Legal and Claim Assessment Issues

George Thompson, Esq.
Introduction

Dentists frequently purchase Individual Disability Insurance ("IDI") with the understanding that if they cannot perform their occupation as a dentist, or a specialized form of dentistry such as pediatric dentistry, they will receive a total disability benefit from the IDI policy. Although many insurance carriers sell disability insurance, the definitions utilized for the phrases "total disability" and "your occupation" are fairly similar. For instance, it is not unusual to see the phrase "total disability" defined as "The inability to perform the material and substantial duties of one's occupation" and the phrase "your occupation" defined as "the occupation you are engaged in at the time of disability". Not all states and courts, however, rigidly limit their analysis of the particular words in those phrases. For example, a Federal Court Judge in Massachusetts concluded that when assessing total disability for a healthcare practitioner, the insurer must give credence to the individual's ability to perform their occupation in a "usual and customary manner with reasonable continuity"...language which did not appear at all in the insurance policy. Many disability insurance policies also contain a provision allowing for a reduced disability benefit if a Dentist is partially or residually disabled. The purpose of this article is to illustrate a fairly common individual disability claim submitted by a dentist and its associated issues.

  1. Dr. Shapiro

Dr. Shapiro became a licensed dentist in 1981 and in 1988 opened his own practice and quickly purchased three other practices in different offices. As both a dentist and owner of the multi office practice, Dr. Shapiro performed dentistry and engaged in some management hiring staff, hygienists and other dentists which totaled 12 individuals. He also employed an office manager. Some of the individuals retained by Dr. Shapiro were actually employees of a medical services company of which Dr. Shapiro was a part owner with his brother in law. Dr. Shapiro typically treated patients between 35-50 hours a week and performed his administrative and managerial functions between 1-4 hours a week. In 1996, Dr. Shapiro stopped practicing dentistry because of progressive osteoarthritis and spondylosis. After he stopped performing dentistry, Dr. Shapiro would visit his offices 2-3 times a week remaining less than 5 hours. When he submitted his claim for total disability benefits, the claim was eventually denied by the insurer which concluded that at worst Dr. Shapiro was partially disabled because he continued to exercise some management responsibility over his multiple clinics. In short, the insurer concluded that Dr. Shapiro's occupation was administrator, manger and dentist. Dr. Shapiro sued the insurer for breach of contract.

The ultimate issue for the trial court to decide was whether dentistry, understood to be the hands on treatment of patients, was the occupation that Dr. Shapiro was engaged in at the time of his disability or was he also a clinic practice manager as well? The trial court judge concluded that Dr. Shapiro's occupation was that of a dentist who regularly engaged in the treatment of his patients and the fact that the dental practice continued to function and he continued to act as owner and administrator after he gave up treating patients did alter the result. The judge found it significant that Dr. Shapiro consistently saw approximately 7-9 patients a day, spent 95% of his work week treating patients and consistently performed an average of 275 procedures a month, up to the day he had to stop seeing patients.

The insurance company appealed. The appeals court affirmed the victory for Dr. Shapiro characterizing his chair dentistry work as "material and substantial" and his administrative works as "incidental". The appeals court further stated that: "At some point, a medical entrepreneur's administrative and managerial responsibilities may well become material and substantial duties of the insured's occupation....Paul Shapiro was a dentist....Because his disability prevents him from performing the material and substantial duties of that occupation, he is entitled to total disability benefits...."

  1. What Can Be Learned From The Shapiro Case?

As illustrated above, disabled Dentist insurance claims and lawsuits will turn on an intensive examination and analysis of the facts surrounding the claim, the particular words, phrases and language in the insurance policy purchased and the law applied by the Court hearing any dispute between the Dentist and his disability insurance carrier. In regards to the factual analysis, regrettably for the owners of disability insurance policies, there is no single clear bright line test that applies to all professional health care providers in all situations who believe they are disabled. As was the case with Dr. Shapiro, the ability of the Dentist claiming disability to portray a detailed factual snapshot of his practice prior to his stopping patient treatment is critical. Items such as insurance code billing records, appointment books, how one describes his or her dentist practice in a malpractice application will be of critical importance and likely requested by the disability insurance company claim examiner. Similarly, statements from fellow employees and staff as to who did what and for how long are extremely relevant. The more facts a Dentist can marshal to demonstrate that the core function of his work was "hand on" chair dentistry, the greater the likelihood there will be of a total disability claim being paid if the individual can o longer treat patients.

The significance of the facts about the dental practice setting will be shaped by the particular language utilized in the disability insurance policy. For example, does the policy use the word "substantial" or "significant" in qualifying the phrase "important duties?" Is the phrase "your occupation" defined singularly or in the plural as "your occupation or occupation(s)?" Although not common place, there have also been cases where the actual language used in a particular disability insurance policy was not compliant with the specific insurance language regulations of a particular state. Similarly, a dentist submitting a disability claim should strive to discover whether the courts of the state he lives in have, in effect, interpreted the policy language from a practical or functional perspective. In other words, instead of applying a rigid contractual analysis that could lead to an absurd result, is there law in that particular state that imports a rule of reason into the application of the policy language?

Finally, although not stated in Dr. Shapiro's disability policy, the vast majority of states, including Massachusetts, have a body of case law and statutes that impose a duty of good faith on insurance companies to act reasonably, to first look for a basis to pay the claim, and to timely and responsibly communicate with the claimant.

About the Author: George Thompson works with the Westborough, MA. Law Firm of George Thompson. His practice focuses on representing professionals and businesses in insurance disputes with their liability, disability, long term care and health insurance carriers. He has lectured across the country on disability insurance claims and litigation. He also taught Insurance Law at the Southern University of Massachusetts School of Law and is the past Co-Chairman of the Health Law section of the Massachusetts Bar Association. The article above is intended to be educational and informative and is not legal advice to any particular reader.